Case Document 14 Filed 09/24/16 Page 1 of 3 E. Lee Schlender, ISBN 1171 SCHLENDER LAW OFFICES 2700 Holly Drive Mountain Home, ID 83647 T: (208) 587-1999 F: (208) 587-3535 E: leeschlender@gmail.com R. Keith Roark, ISBN 2230 THE ROARK LAW FIRM 409 North Main Street Hailey, ID 83333 T: (208) 788?2427 F: (208) 788-3918 Attorneys for Plaintiff IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO ANTWON MCDANIEL, Plaintiff, v. DIETRICH SCHOOL DISTRICT NO. 314, STEPHANIE SHAW, BENJAMIN HARDCASTLE, BENJAMIN HOSKISSON, WAYNE DILL, STAR OLSEN, KRIS HUBERT, PERRY VAN TASSELL, BRET PETERSON, MICHAEL TORGERSON, RICK ASTLE, BRAD DOTSON AND JOHN AND JANE DOES 1-10, Defendants. Case No. 1:16-cv-00202 MOTION TO COMPEL DISCLOSURE F.R.C.P. 26(a) and 37(b)(4) MOTION TO COMPEL DISCLOSURE F.R.C.P. 26(a) and 37(b)(4) Case Document 14 Filed 09/24/16 Page 2 of 3 COMES NOW Plaintiff by his attorneys as undersigned and respectfully moves this court for an order compelling a complete Initial Disclosure of unredacted documents and exhibits identi?ed by Defendant as Dietrich SD 1-630 upon Defendants Supplemental Initial Disclosure dated August 12, 2016 and in supplements thereafter. I do hereby certify that written demands for such initial disclosure have been made; copies are attached to the Af?davit of E. Lee Schlender ?led herewith. I do hereby certify that Plaintiff?s counsel did telephonically meet and con?rm with defense counsel Bret A. Walther in an attempt to resolve the dispute regarding Defendant?s Supplemental Initial Disclosure, which was not successful. Plaintiff also requests a protective order that Plaintiff shall not be required to comply with the defendants written discovery until not less than thirty days furnishing counsel all of the disputed documents without redaction. This motion is support is supported by the Memorandum ?led herewith and the Af?davit of E. Lee Schlender with attachments thereto. DATED thy: 3 day of Septem Attorney for Plaintiff MOTION TO COMPEL DISCLOSURE .R.C.P. 26(a) and 37(b)(4) I 2 E. Lee Schlender, Case Document 14 Filed 09/24/16 Page 3 of 3 CERTIFICATE OF SERVICE I certify that on ZL/September 2016 I caused a true and correct copy of this entire document to be served as indicated below: Mr. Brian Julian Anderson, Julian Hull LLP C. W. Moore Plaza 250 South Fifth Street, Suite 700 PO Box 7426 Boise, ID 83707-7426 Fax: (208) 344-5510 SERVED BY: E. Lee Schlender, Attorney for Plaintiff PLAINTIFF ?8 MOTION TO COMPEL DISCLOSURE F.R.C.P. 26(a) and 37(b)(4) 3 Case Document 14-1 Filed 09/24/16 Page 1 of 7 E. Lee Schlender, ISBN 1171 SCHLENDER LAW OFFICES 2700 Holly Drive Mountain Home, ID 83647 T: (208) 587-1999 F: (208) 587-3535 E: leeschlender@gmail.com R. Keith Roark, ISBN 2230 THE ROARK LAW FIRM 409 North Main Street Hailey, ID 83333 T: (208) 788-2427 F: (208) 788-3918 Attorneys for Plaintiff IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO ANTWON MCDANIEL, Plaintiff, v. DIETRICH SCHOOL DISTRICT NO. 314, STEPHANIE SHAW, BENJAMIN HARDCASTLE, BENJAMIN HOSKISSON, WAYNE DILL, STAR OLSEN, KRIS HUBERT, PERRY VAN TASSELL, BRET PETERSON, MICHAEL TORGERSON, RICK ASTLE, BRAD DOTSON AND JOHN AND JANE DOES 1-10, Defendants. Case No. 1:16-cv-00202 AFFIDAVIT OF E. LEE SCHLENDER IN SUPPORT OF MOTION TO COMPEL DISCLOSURE F.R.C.P. 26(a) and 37(b)(4) AFFIDAVIT OF E. LEE SCHLENDER IN SUPPORT OF MOTION TO COMPEL DISCLOSURE F.R.C.P. 26(a) and 37(b)(4) I Case Document 14-1 Filed 09/24/16 Page 2 of 7 E. Lee Schlender being duly sworn and states in support of Plaintiff?s Motion to Compel Disclosure F.R.C.P. 26(the attorneys for the Plaintiff in the above entitled action. 2. Attached to this af?davit, in chronological order are documents, letters, and emails A through . a. Defendant?s Supplemental F.R.C.P. 26(a)(1) Initial Disclosures dated August 12, 2016; b. Schlender letter to Mr. Julian dated September 6, 2016; 0. Julian letter to Schlender dated September 9, 2016; d. Schlender letter to Julian dated September 16, 2016; e. Schlender email to attorney Walther dated September 20, 2016; f. Email from attorney Walther to Schlender dated September 21, 2016; g. Redacted documents attached to Schlender letter to Julian dated September 6, 2016, a portion of the initial disclosure of Defendants? bates numbered 1-630, which can be identi?ed by the Defendants numbering system in bates form contained in Volumes I and 2 are: 1. Superintendents investigative report, Dietrich SD 00329- 00332; 2. Incident Report form, Dietrich SD 00334 3. Handwritten report, Dietn'ch SD 00335 4. Drawing, Dietrich SD 00393 5. Drawing, Dietrich SD 00392 AFFIDAVIT OF E. LEE SCHLENDER IN SUPPORT OF MOTION TO COMPEL DISCLOSURE F.R.C.P. 26(3) and 37(b)(4) 2 Case Document 14-1 Filed 09/24/16 Page 3 of 7 Volume one (1) of Attachments to Schlender Af?davit Supporting Motion for Disclosure Due to MB limitations of the ECF system on the size of documents that can be ?led, the Attachments to Schlender Af?davit Supporting Motion to Compel Disclosure have been divided. This volume one (1) are documents marked 1-10. Volume 2 is the remainder of the Af?davit attachments marked as 10 through 19 both volume documents are listed as such in the Af?davit. DATED this day of Septe . ee Schlender, Attorney for Plaintiff CERTIFICATE OF SERVICE I certify that on I September 2016 I caused a true and correct copy of this entire document to be served as indicated below: Mr. Brian Julian Anderson, Julian Hull LLP C. W. Moore Plaza 250 South Fifth Street, Suite 700 PO Box 7426 Boise, ID 83707-7426 Fax: (208) 344-5510 SERVED BY: E. Lee Schlender, Attorney for Plaintiff VOLUME 1 OF ATTACHMENTS TO THE AFFIDAVIT OF E. LEE SCHLENDER IN SUPPORT OF MOTION TO COMPEL DISCLOSURE F.R.C.P. 26(8) and 37(b)(4) 2 Case Document 14-1 Filed 09/24/16 Page 4 of 7 CERTIFICATE OF SERVICE I certify that on September 2016 1 caused a true and correct copy of this entire document to be served as indicated below: Mr. Brian Julian Anderson, Julian 8: Hull LLP C. W. Moore Plaza 250 South Fifth Street, Suite 700 PO Box 7426 Boise, ID 83707-7426 Fax: (208) 344-5510 SERVED BY: E. Lee Schlender, Attorney for Plaintiff AFFIDAVIT OF E. LEE SCHLENDER IN SUPPORT OF MOTION TO COMPEL DISCLOSURE F.R.C.P. 26(a) and 37(b)(4) 4 Case Document 14-1 Filed 09/24/16 Page 5 of 7 6. Drawing, Dietrich SD 00391 7. Drawing, Dietrich SD 00390 8. Drawing, Dietrich SD 00389 9. Drawing, Dietrich SD 00388 10. Drawing, Dietrich SD 00387 11. Drawing, Dietrich SD 00386 12. Drawing, Dietrich SD 00385 13. Incident report 00380 14. Dietrich SD 00667 15. Incident Handwritten (portion 00381 16. Incident Report 00663 17. ?Before Practice? 00664 18. ?after practice? 00665 19. ?After Practice? (2) 00667 h. The entire disclosure Dietrich SD 1-630 is comprised of more than 600 pages, with redactions. The documents attached hereto show the redactions from key investigative ?les. i. Defendant?s Disclosures were served upon Plaintiff?s counsel with redactions the same as upon the documents attached hereto. In the event the court desires or requires the entire ?le of initial disclosure documents 1-630, they will be ?led. DATED this day of September 2 . AFFIDAVIT OF E. LEE SCHLENDER IN SUPPORT OF MOTION TO COMPEL DISCLOSURE F.R.C.P. 26(3) and 37(b)(4) 3 Case Document 14-1 Filed 09/24/16 Page 6 of 7 RA o, s?yhuunu.fo ?gnome Eel/keg LL14 Notary Public for Idaho A I I Residing at ?77] le '95. [lane expires: l/ adq/ 9.017 CERTIFICATE OF SERVICE I certify that olgeptember 2016 I caused a true and correct copy of this entire document to be served as indicated below: Mr. Brian Julian Anderson, Julian 8: Hull LLP C. W. Moore Plaza 250 South Fifth Street, Suite 700 PO Box 7426 Boise, ID 83707-7426 Fax: (208) 344?5510 SERVED BY: E. Lee Schlender, Attorney for Plaintiff AFFIDAVIT OF E. LEE SCHLENDER IN SUPPORT OF MOTION TO COMPEL DISCLOSURE F.R.C.P. 26(3) and 37(b)(4) 4 Case Document 14-1 Filed 09/24/16 Page 7 of 7 Sam?; 4k .3 4'1} . . I #3097 We??noonoou?? Case Document 14-2 Filed 09/24/16 Page 1 of 18 E. Lee Schlender, ISBN 1171 SCHLENDER LAW OFFICES. 2700 Holly Drive Mountain Home, ID 83647 T: (208) 587-1999 F: (208) 587-3535 E: leeschlender@gmail.com R. Keith Roark, ISBN 2230 THE ROARK LAW FIRM 409 North Main Street Hailey, ID 83333 T: (208) 788-2427 F: (208) 788-3918 Attorneys for Plaintiff IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO ANTWON MCDANIEL, Plaintiff, v. DIETRICH SCHOOL DISTRICT NO. 314, STEPHANIE SHAW, BENJAMIN HARDCASTLE, BENJAMIN HOSKISSON, WAYNE DILL, STAR OLSEN, KRIS HUBERT, PERRY VAN TASSELL, BRET PETERSON, MICHAEL TORGERSON, RICK ASTLE, BRAD DOTSON AND JOHN AND JANE DOES 1-10, Defendants. Case No. 1:16-cv-00202 VOLUME ONE (1) OF ATTACHMENTS To AFFIDAVIT OF E. LEE SCHLENDER IN SUPPORT OF MOTION TO COMPEL DISCLOSURE F.R.C.P. 26(a) and 37(b)(4) (ECF LIMITATION) VOLUME 1 OF ATTACHMENTS TO THE AFFIDAVIT OF E. LEE SCHLENDER IN SUPPORT OF MOTION TO COMPEL DISCLOSURE F.R.C.P. 26(3) and 37(b)(4) Case Document 14-2 Filed 09/24/16 Page 2 of 18 Volume one (1) of Attachments to Schlender Affidavit Supporting Motion for Disclosure Due to MB limitations of the ECF system on the size of documents that can be ?led, the Attachments to Schlender Af?davit Supporting Motion to Compel Disclosure have been divided. This volume one (1) are documents marked 1-10. Volume 2 is the remainder of the Af?davit attachments marked as 10 through 19 both volume documents are listed as such in the Af?davit. DATED wig?f I day of Septe E. Lee Schlender, Attorney for Plaintiff CERTIFICATE OF SERVICE I certify that on; I September 2016 I caused a true and correct copy of this entire document to be served as indicated below: Mr. Brian Julian Anderson, Julian Hull LLP C. W. Moore Plaza 250 South Fifth Street, Suite 700 PO Box 7426 Boise, ID 83707-7426 Fax: (208) 344-5510 SERVED BY: E. Lee Schlender, Attorney for Plaintiff VOLUME 1 OF ATTACHMENTS TO THE AFFIDAVIT OF E. LEE SCHLENDER IN SUPPORT OF MOTION TO COMPEL DISCLOSURE - F.R.C.P. 26(2) and 37(b)(4) 2 Case Document 14-2 Filed 09/24/16 Page 3 of 18 Dietrich School District #314 406 North Park, Dietrich, ID 83324 Office (208) 544-2158 ext. 141 Cell (208) 539-9244 benh@ad314.k12.ld.us Benjamin G. Hardcastle Of?ce of the Superintendent Investigative Report Date: 10/30/2015 Incident Date: 10/22/2015 Overview: There have been allegations made of an incident taking place in the boy?s locker room October 22, 2015. The alleged victim (Student A) is a student with a disability and he is African American. 1 am the Superintendent/Federal Programs Director and Title IX Of?cer for the district. We were noti?ed of the alleged incident on Friday, October 23, 2015 sometime before 11 am. It was reported by the alleged victim?s mother. I began investigating the incident with the Secondary Principal, Stefanie Shaw, concurrently. We have interviewed other players that were present and the victim. On Friday, Oct. 23?1 we contacted parents of two students that we had investigated as offenders. We met with each student with guardians present. We explained the allegations and that our initial investigation is ongoing. We then suspended both individuals from playing in the football game for that night and communicated that they were suspended for the following week as well, October 26-October 30?? while we continue the investigation. On Monday October 26*, Mrs. Shaw and I continued to investigate and interview witnesses. Investigations continued Tuesday, October 27, 2015 and Wednesday, October 28, 2015. Law enforcement was noti?ed Friday, October 23, 2015 when the Student was taken to the hospital and and are conducting a concurrent investigation. The allegations: 1. 1n the locker room before practice, Student A was grabbed by the back of his underwear and pulled until the waste band ripped away from the underwear by Student B. 2. 1n the locker room before practice, Student A was shut into the ?cold room" outside where equipment is kept and Student acted out a sexual gesture on Student A described as ?Dry Humping? 3. After practice, Student took a hanger and inserted it into Student A?s rectum. Another player (Student C) kicked the hanger with the intention of lodging the hanger further into the Student A?s rectum. The allegations came from Mrs. Shelly McDaniel, mother of Antwon McDaniel on Friday, Oct. 23?. First she told Mr. Hardcastle of Antwon?s under wear being ripped. Later in the morning she heard from her other son, -, that a hanger was allegedly inserted into Antwon?s rectum. She reported this to Mrs. Shaw and then Traci Perron and then Traci brought her to talk to Mr. Hardeastle when she heard the allegations. In talking with Mrs. McDaniel, she mentioned comments that she has either heard, or heard second hand from her sons about players saying that Antwon likes ?Kentucky Fried Chicken?, ?Kool Aid? and ?Grape Soda". She also referenced a picture that was drawn on a whiteboard in the math classroom of a bus with a student face in the back seat window and and arrow pointing to the bus saying ?Twon?. I asked Mrs. McDaniel if she has brought this up to any of the DIETRICH SD - 00329 1. Superintendents investigative report, Dietrich SD 00329-00332; Case Document 14-2 Filed 09/24/16 Page 4 of 18 Dietrich School District #314 406 North Park, Dietrich, ID 83324 Of?ce (208) 544-2158 ext. 141 Call (208)539-9244 benh@sd314.k12.ld.us Benjamin G. Hardcastte Office of the Superintendent coaches or to any teachers prior to talking with me. She said, ?No? and indicated that she knows that boys will do and say things sometimes. She also said that she didn?t want to he ?that mom that comes and tells on every little thing that happens." She then shared with me what had been reported by her other son- about the locker room. She shared that she feels that boys have played on the fact t?ut Antwon cognitively does not understand the racial implications of the things that are said about fried chicken and grape soda and that she has told Antwon that it is ok for people to say that to him ?if he really likes those things" but if he doesn?t then he should say that he doesn?t like them. She expressed that she felt that Antwon did not report the incidents that happened in the locker room because he doesn't want them (his team mates) to get in trouble. She also said that a player named has had issues outside of school with mistreating Antwon. She said that they are frien and that Antwon has gone camping with. and spent the night at his house before. She said that. once ?choked him out" and once ?shot him with a pellet gun?. These incidents happened outside of school, and l?m not sure how long ago. Investigation Process: 1. Interviews and Actions: a. Friday, 10/23/15 i. Shelly McDaniel (initial report to Mr. l-lardcastle) ii. iv. v. vi. and- were suspended at this point for 5 days and from football activities. Parents/Guardians were noti?ed and noti?ed of right to suSpension review. Was not beeausc the evidence regarding his involvement di not substantiate the claim against him. vii. After school, Coach was asked regarding supervision. coach shared that they pop in and out, but that they are hesitant to be in the locker room while the boys are showering and changing because they worry about being accused of impropriety. We asked that they make sure that they raise their presence as we are investigating an incident. We also informed coach about players that are suspended from lbotbatl. Called Shelly McDaniel to check on Antwon, she indicated that 3 Lincoln county sheriff's deputy was present at the hospital interview. b. Manda . 10/26/15 ace ca toS errif Ellis. Le? message SD - 00330 Case Document 14-2 Filed 09/24/16 Page 5 of 18 Benjamin G. Hardcastle vi. vii. c. Tuesday. October 27?l Dietrich School District #314 406 North Park, Dietrich, ID 83324 Office (208) 544-2158 ext. 141 Catt (208) 539-9244 benh@sd314.k12.id.us Of?ce of the Superintendent 0 Coach Mike was notified after school that the investigation is ongoing and to watch out for the kids? emotional wellbeing given the nature ofthe investigation. to not disclose any details if asked about the investigation, and to refer people to Mr. llardcastle if they have questions or concerns. 4 pm Sid and Kristen Ward [parents of-) I explained the accusations, and that this is likely to lead to an expulsion hearing with the school board. 4:30 pm Shelly and Tim McDaniel (parents of Antwon) More information presented about possible demeaning comments that have been made at practices and other information. When asked whether she had reported this to anyone when it happened. Shelly said that she didn't want to be that kind ofmom. ii. iv. v. vi. d. Wednes av. 28. 20l5 i. ii. Phone interview w/ Shirley Bingham (substitute teacher on Friday. Oct. 23?i in one ofAntwon?s classes) iv. Called Sherrif?s office. Placed on hold for prolonged time. Called Sherrif?s cell phone. Sherrifcontirmed that they have been aware of the incident since Friday and that he has a deputy working on it. v. Called Coach Called Torgensen to ask some follow up questions. lle indicated that our Athletic Director may have called Wards. Mrs. Shaw went and talked with Mrs. Perron and asked that she not contact any families involved as the investigation is still ongoing. vi. vii Ca led Jet Boicc from Morten insurance and faxed overview is. Called Brett Walther ofAnderson .lullian and Hall x. Sgt. Scott Dcnning came to the school and told us that there is a criminal investigation and that they need all student demographic information and our notes and tiles about the investigation. xi. 6 pm e. Thursday, October . 2tll5 i. Called Sgt. Scott Denning and requested that be please get a warrant. explained that 1 would be able to give them directory information, but that I would need a warrant to disclose all information statements and documents) about the investigation as they are now part of student records. DIETRICH SD - 00331 Case Document 14-2 Filed 09/24/16 Page 6 of 18 Dietrich School District #314 406 North Park. Dietrich. lD 83324 Of?ce (208) 544-2158 ext. 141 Cell (208) 539-9244 benh@sd314.k12.ld.us Benjamln G. Hardcaetle Of?ce of the Superintendent 2. Findings and Recommendations: a. More like] than not: I. 0 0 More likely than not: Prior to practice on Oct. 22, 2015, in the locker room, grabbed Antwon McDaniel by his underwear and pu le upward until they ripped. This happened in front of other student athletes. After practice on Oct. 22, 2015, Antwan McDaniel was wearing the torn boxers and his buttocks was exposed. took a black plastic hanger and inserted the hook portion between Antwon McDaniel?s butt cheeks with the hook portion being directed toward the anus and the hanger hook ending up inside of Antwan McDaniel?s rectum. pulled the hanger out of Antwan McDaniel?s rectum. It is ossible that durin the violation of Antwan McDaniel, told- and to ?stop? and that? responded saying something to the effect, ?Shut up or 1?11 0 the same thing to you.? More likely than not,_ was present when put the ban hook into the uttocks of Antwan McDaniel. #kicked the hanger multiple times, either embedding it into rectum of Antwon McDaniel, or embedding it further into the rectum of Antwon McDaniel. On other occasions has ?dry humped" or simulated having anal sex wit younger players. It is possible but not certain that. before practice on Oct. 22nd, pushed Antwan into the corner of the bathroom on the Junior High School side of the locker room, after his underwear had been ripped by and simulated having sex with him. More likely than noanhad his arm around and possibly was hugging Antwon aniel when? rabbed his underwear. was resent and turned o??the lights in the bathroom pushed Antwon McDaniel into the corner and avmg sex with hint. More liker than not has ?dry humped" or simulated having sex with Antwon McDaniel in the cold storage room where the football team keeps its pads. but this happened on a separate date than the other incidents. DIETRICH SD 00332 Case Document 14-2 Filed 09/24/16 Page 7 of 18 Admin Use Only: Rpt. Form 1 of 4 INCIDENT REPORT FORM Date: 0 a" Person Remaini? Date/I?ime of Occurrence: Position: wag, Hm} 0 It 1?4; gains?. @015 uth Description of event (?who. what, when, where, wh BE SPECIFIC :12 AQVQA i-o ?bckef f?ooy?.\ I ?i rt ?ler 7 03%? Rad?s Car (Nomi-ice. MAR who. tip-le lull Unit-.03 o?e?irk? real; and a; (Noah. I- ?k9 '13 ?at< - ?59? onto.) r\ ?OU-mak ?4.4 mil-if Xvi-?Lad jawn QM Alma? curd W3 unwound rippcok gilt; Ht 5? We": Mayan-3 A?i-vooq and um inc Laid @La LL ?(mi [ii-.17! clock and\ Anbe Sm?o? mm: #2 I, or" leuwur?w 1 Dig {u brim du 90"? ?Qip'x'Cr VOL a (20? "3 {lads ?Minc? in? iffowblt irdg?m or (til g; $1.9 ?fdog?ki?o 30 wt, ?50 )0 0? Pic?(L and. just? Mug ON ?in-l ?ick 09 rd. Adel-bu}; Allin $ng ow?: 4. moles la in. locker room \0 irdM-??uie ?We in Wu. locku- room Mam Wll?bm cofpte 0c? irw?vefs ?Mama Conclusion: Have the allegatiom been substantiated as jhcmal? Yes No Does the conduct violate Co. poIicy? No Sexual Other Disciplinary Action: Was disciplinary action taken? Yes No if so, explain: Victim Assistance/Support: 0 Supervisor 0 Owner/O??cer Ci other (describe) 5om?fhm5 i?o si-op im out. oi- Hnose (nook UMP 1 gal-'- or Sins i-o 4,03 ssme cu I. FORMS ATTACHED: Cl Checklist Ci Complaint Form Cl Respondent I Witness Form A (Inch additional pages as necessmy. 2. Incident Report form, Dietrich SD 00334 DIETRICH so - 00334 Case Document 14-2 Filed 09/24/16 Page 8 of 18 00 a W3 l?r a?fk hack agar(snc?ivw. mn'x [63c Q2\myww Cum" Inn? (1?09! "1 \v '1?1?3(31/ ,rv5.5 VJ 0?5? I'mj} 0 Luv?) Mn: (.1 IQJI ?1 M00 bblUNj-th {um I, CAN ru?] mm; quJu.? In or ohm (1 . (u?k i am (101? l'j? (worm Kat/k f? . I '19 LO uh?. (3(171137- 0? OF '1 0,31. - .z m; w, a. manval/(f (upck {n 6 XL 730 j? - 5.4" If- I f. Ag,? 5; 1" cmlu'J V10, or? I I If?qnt? 001rap/r17 {kl?vl an 911/ 7?2?4, L411 hi?wk 0" hm?. T..- 3? 4:0 wyol M3) \Aou?c-jo, alpJ'ar 3. Handwritten report, Dietrich SD 00335 80 - 00335 {Ed 1 Luanda-1! "gr. .. . Lam-65.. . . . . . wast: J. a. .. u. mi: nib;? .1, 32 DIETRICH SD - 00336 . an KIRIR. a: 99:33. . Susana Case Document 14-2 Filed 09/24/16 Page 9. 0-f- Document 14-2 Filed 09/24/16 Page 10 of 18 DIETRICH SD - 00393 4. Drawing, Dietrich SD 00393 Case Document 14-2 Filed 09/24/16 Page 11 of 18 POLICY TITLE: Discrimination Prohibited POLICY NO: 290 It'is?the' policy of the IBESDB not to discriminate on the basis of race, color, creed, national origin, religion, age, disability or sex in its educational programs or employment practices. 9009066 LEGAL REFERENCE: Title VII of the Rights Act of 1965, 42 USC Section 2000c, et seq. Title VI of the Civil Rights Act of 1964, 42 USC Section 2000d, et seq. Section 1981 of the Civil Rights Act of 1866, 42 USC Section 1981 Section 1983 of the Civil Rights Act of 1871, 42 USC Section 1983 The Equal Pay Act 1963, 29 USC Section 206d Title of the Education Amendments of 1972, 20 USC Section 1681 Age Discrimination and Employment Act of 1967, 29 USC Section 621, et seq. Americans with Disabilities Act of 1990, 42 USC Section 12101, et seq. Section 504 of the Vocational Rehabilitation Act 1973, 29 USC Section 794 Idaho Commission on Human Rights, Idaho Code Section 67-5901, et seq. ADOPTED: 1I12I2009 AMENDED: SECTION 200: SCHOOL BOARD 1999 Eberharter-Maki 8: Tappen, PA DIETRICH SD - 00394 Aw Prvw?u?CLx Cage Document 14-2 Filed 09/24/16 Page 12 of 18 i Wag 7V1 ?aw/(M Him2/4414 SD - 00392 i 5. Drawing, Dietrich SD 00392 x?f# Case Document 14-2 Filed 09/24/16 Pae 13 of 18 6. Drawing, Dietrich DIETRICH 30-00391 Document 14-2 Filed 09/24/16 Page 14 of 18 211?: - art-w 6. Drawing, Dietrich SD 00391 Cas Document 14-2 Filed 09/24/16 Page Drawing. Dietrich SD 00390 Case ""Documehf 14-2 Filed 09/24/16 Page 16 of 18 69800-03 H: 113111910 -.V .. Ca Document 14-2 Filed 09/24/16 Page Li. S.- 3L5, - . 7. Drawing, Dietrich SD 00390 TRICH SD - 00390 Case Document 14-2 Filed 09/24/16 Page 18 of 18 882300 QE- L5H: 88?00 (18 Lemma ??aw-Ia 6 Case Document 14-3 Filed 09/24/16 Page 1 of 18 E. Lee Schlender, ISBN 1171 SCHLENDER LAW OFFICES 2700 Holly Drive Mountain Home, ID 83647 T: (208) 587-1999 F: (208) 587-3535 E: 1eeschlender@gmail.com R. Keith Roark, ISBN 2230 THE ROARK LAW FIRM 409 North Main Street Hailey, ID 83333 T: (208) 788-2427 F: (208) 788-3918 Attorneys for Plaintiff IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO ANTWON MCDANIEL, Plaintiff, V. DIETRICH SCHOOL DISTRICT NO. 314, STEPHANIE SHAW, BENJAMIN HARDCASTLE, BENJAMIN HOSKISSON, WAYNE DILL, STAR OLSEN, KRIS HUBERT, PERRY VAN TASSELL, BRET PETERSON, MICHAEL TORGERSON, RICK ASTLE, BRAD DOTSON AND JOHN AND JANE DOES 1-10, Defendants. Case NO. 1:16-cv-00202 VOLUME TWO (2) OF ATTACHMENTS TO AFFIDAVIT OF E. LEE SCHLENDER IN SUPPORT OF MOTION TO COMPEL DISCLOSURE F.R.C.P. 26(a) and 37(b)(4) (ECF LIMITATION) VOLUME 2 OF ATTACHMENTS TO THE AFFIDAVIT OF E. LEE SCHLENDER IN SUPPORT OF MOTION TO COMPEL DISCLOSURE F.R.C.P. 26(a) and 37(b)(4) 1 Case Document 14-3 Filed 09/24/16 Page 2 of 18 Volume two (2) of Attachments to Schlender Af?davit Supporting Motion for Disclosure Due to MB limitations of the ECF system on the size of documents that can be ?led, the Attachments to Schlender Af?davit Supporting Motion to Compel Disclosure have been divided. Attached to the Af?davit are documents marked A thru F. This volume 2 has as attachments the remainder of the Af?davit attachments marked as 1 through 19 and listed as such in the Af?davit. Redacted documents attached to Schlender letter to Julian dated September 6, 2016, a portion of the initial disclosure of Defendants? bates numbered 1-630, can be identi?ed by the Defendants numbering system and are attached hereto: 1. Superintendents investigative report, Dietrich SD 00329- 00332; 2. Incident Report form, Dietrich SD 00334 3. Handwritten report, Dietrich SD 00335 4. Drawing, Dietrich SD 00393 5. Drawing, Dietrich SD 00392 6. Drawing, Dietrich SD 00391 7. Drawing, Dietrich SD 00390 8. Drawing, Dietrich SD 00389 9. Drawing, Dietrich SD 00388 10. Drawing, Dietrich SD 00387 11. Drawing, Dietrich SD 00386 12. Drawing, Dietrich SD 00385 VOLUME 2 OF ATTACHMENTS TO THE AFFIDAVIT OF E. LEE SCHLENDER IN SUPPORT OF MOTION TO COMPEL DISCLOSURE F.R.C.P. 26(3) and 37(b)(4) 2 Case Document 14-3 Filed 09/24/16 Page 3 of 18 13. Incident report 00380 14. Dietrich SD 00667 15. Incident Handwritten (portion) 00381 16. Incident Report 00663 17. ?Before Practice? 00664 18. ?After practice? 00665 19. ?After Practice? (2) 006 DATED this 2 day of September 2016. E. Schlender, A omey for Plaintiff CERTIFICATE OF SERVICE I certify that 02" 2 113,1 September 2016 I caused a true and correct copy of this entire document to be served as indicated below: Mr. Brian Julian Anderson, Julian Hull LLP C. W. Moore Plaza 250 South Fifth Street, Suite 700 PO Box 7426 Boise, ID 83707-7426 Fax: (208) 344?55 10 SERVED BY: E. Lee Schlender, Attorney for Plaintiff VOLUME 2 OF ATTACHMENTS TO THE AFFIDAVIT OF E. LEE SCHLENDER IN SUPPORT OF MOTION TO COMPEL DISCLOSURE F.R.C.P. 26(8) and 37(b)(4) 3 Cgse Document 14-3 Filed 09/24/16 Page 4 of 18 //1/In _vUv V) I 10 IDI'aWing9 Dietrich DIETRICH 80-00387 Case Document 14-3 Filed 09/24/16 Page 5 of 18 89800 C18 HOIHLBIO 88?00 as 110111910 6 Document 14-3 Filed 09/24/16 Page Drawing, Dietrich SD 00386 DIETRICH SD - 00386 Case Document 14-3 Filed 09/24/16 Page 7 of 18 3H SD - 00385 12 Drawing, Dietrich SD 00385 Document 14-3 Filed 09/24/16 Page 8 of 18 12 Drawing. Dietrich SD 00385 . . . - -. -. .. . ., 'zI; Hug.Vwhaw?m Mm. whyi'k': 3:175}? . .. . 2 Gina-214.5. Is. "hr 14? gnaw! 61%,ch 1/94?: Lem/o 9" 1%;le {med 1 I 14 OM IQ/low Li: a' blG?v-?c. kc wag U?ai?g?bl: VGAVTC ?~15 0233*? Occusm 0m (hf/m aw?ckj rag/[w a +6 cm a 0 cr? ca} ?61.?th {We Ca?i?m M-x? Conclusion. ave! subsraiztialedasfaq Yes 0N0 ?2 Does the conduct violate Co. policy? No Sex al Other Disciplinary Action: Was disciplinaty action ?ken? CI Yes No If?so, explain: 7 ?40 Pdet?Sg 07?- - . 1, . H1th 1/ [-c-wJ/K . Victim I13:72:neelsjuppurt: Cl, Supervisor 0 Owner/Of?cer ?rm? (describe) Notes] ddltionalComments: ?5 Jar {vhf a( or? [4:5 b<-c 5L {3in up. ?44' iAnJ/ hu?ftm beg)!? {)fo?CL 7L2: 0L Ufa?? FORMS ATTACHED: 0 Checklist Complaint Form Cl Respondent I Witness Form Attach addilional page: as necesswy. 13 Incident Report 003 80 Case Document 14-3 Filed 09/24/16 Page 10 of 18 Ifthe complaint alleges a violation of Title IX, Title II, Section 504 of the Rehabilitation Act, or sexual harassment, the principal shall turn the complaint over to the Nondiscrimination Coordinator who shall investigate the complaint The District has appointed Nondiscrimination Coordinators to assist in the handling of discrimination complaints. The Coordinator will complete the investigation and file the report with the Superintendent within thirty (30) days after receipt of the written grievance. The Coordinator may hire an outside investigator if necessary. If the Superintendent agrees with the recommendatir'm of the Coordinator, the recommendation will be implemented. If the Superintendent rejects the recommendation of the Coordinator, and/or either party is not satis?ed with the recommendations from Level 2, either party may make a written appeal within ?fteen (15) days of receiving? the report ofthe Coordinator to the Board for a hearing. . Level 3: Superintendent: Upon receipt of the request for review, the Superintendent shall schedule a meeting between the parties and the principal. The parties shall be a??orded the opportunity to either dispute or concur with the principal?s report. The Superintendent shall decide the matter within ten (10) days of the meeting and shall notify the parties in writing of the decision. If the Superintendent agrees with the recommendation of the principal, the recommendation will be implemented. ?If the Superintendent rejects the recommendation of the principal, the matter may either be referred to an outside investigator for further review or resolved by the Superintendent. If either party is not satis?ed with the decision of the Superintendent, the Board is the next avenue for appeal. A written appeal must be submitted to the Board within ??een (15) days of receiving the Superintendent?s decision. The Board is the policy-making body of the school, however, and appeals to that level must be based solely on whether or not policy has been followed. Any individual appealing a decision of the Superintendent to the Board bears the burden of proving a failure to follow Board policy. Level 4: The Board: Upon receipt of a written appeal of the decision of the Superintendent, and assuming the individual alleges a failure to follow Board policy, the matter shall be placed on the agenda of the Board for consideration not later than their next regularly scheduled meeting. A decision shall be made and reported in writing to all parties within thirty (30) days of that meeting. The decision of the Board will be ?nal. .. . Procedure History: Adopted on: June 2015 Revised on: SD - 00379 Case Document 14-3 Filed 09/24/16 Page 11 of 18 Response to Concern Person Responding Beniamin G. Hardcastle Response Date 11/6/2015 Method used to communicate response: Certi?ed Mail and Face to face conversation Actions taken to investigate concern: On October 23, 2015: Shelly McDaniel reported verbally to Mrs. Shaw and Mrs. Perron. Mrs. Perron brought her to me as it related to segual harassment and Lam the Title IX Of?cer. Antwon was taken to the hospith to be eggamined. Lincoln County Sherrif?s office was aware at that time. Mr. Hardcastle and Mrs. Shaw (as the secondary principal) began investigating a?er talking to Mrs. McDaniel. Student interviews began that day. Information gathered that day was used to take initial school administration continued from Monday. Oct 26'h through Tuesday, Nov. Mr. Hardcastle placed calls to Slrerrif Ellis on Monday. Oct. 26'" and on October wed. Oct. Deputy made contact with us that atternoon. Criminal investigation is being handled by Lincoln County Sherrif?s of?ce and the State Attorney General o?ice. We have pledged full segregating. People contacted in gathering information upon which to make decision: From October 23rd - Nov. 3?1 Mrs. Shaw and Mr. Hardcastle conducted 30 interviews including students that were present in the locker room, play football, coaches and parents. We also reviewed camera footage outside of the locker room. .4. Findings of the investigation: We found evidence of misconduct among students that include bullying behavior, and sexual assault. We found evidence of comments made on occasion about food, etc. that Antwon likes that can have racial implications Decision: Mr. Hardcastle and Mrs. Shaw have used misconduct. We are continuing to cooperate with law enforcement in the criminal investigation, We will continue to gather information and would like to work with the McDmels,fam?x,md the community to identify cultural implications and impact. As a schcoL we want to help identify what we can do to help Antwon and to help see to the needs of all of our students in the wake of this. Results of co nmunicating the decision: . . age. 74 Signature (Mme?) ?41.10 14' Case Document 14-3 Filed 09/24/16 Page 12 of 18 Case Document 14-3 Filed 09/24/16 Page 13 of 18 ?j A 13 Incident Report 00381 DIETRICH SD - 00331 Case Document 14-3 Filed 09/24/16 Page 14 of 18 POLICY NO: 294 PAGE 1 of 3 Grievances by employees, students or other persons alleging illegal discrimination by the IBESDB, its employees, other students, or third parties in any of the bureaus?s public facilities, programs or activities based on race, sex, national origin, color, age (persons forty (40) years of age or older), religion, or disability may be ?led as follows: FILING A CIVIL RIGHTS GRIEVANCE COMPLAINT A complaint should be ?led in writing by the complainant, by the complainant?s representative, parent or guardian or both. Any complaints received by the IBESDB by telephone-or verbally will be recorded by the bureau in written form. The complaint must be ?led with the of?ce of the superintendent within one hundred eighty (180) days of the alleged discriminatory action. The complaint should set forth the date, place, and nature of the discriminatory action and specify the remedy sought by the complainant. INVESTIGATION AND REPORT The IBESDB will contact the complainant in writing within ten (10) working days of receipt of the complaint to let him or her know the complaint was received and what action the bureau has taken or will take in an attempt to resolve the complaint. Within ninety (90) calendar days after receiving the complaint, the superintendent or designee must investigate the incident and issue a written ?nding of whether or not discrimination was found. The investigation will include, but not be limited to, interviews with the complainant and bureau personnel. The investigator will allow both parties an opportunity to present written statements of witnesses and/or other evidence. If the complainant does not agree Wi?'l the ?ndings of the superintendent or designee, he or she will have thirty (30) days to provide additional information to the designee of the superintendent to facilitate further review of the complaint. The complainant will be noti?ed of his or her to appeal the ?ndings of the bureau to the proper state or federal compliance agency. A complainant may at any time ?le a complaint directly with other agencies listed on page two of this policy. REMEDY IF DISCRIMINATION IS FOUND If the superintendent or designee ?nds that the alleged discrimination occurred, the superintendent will take immediate steps to remedy such discrimination and to prevent the recurrence of discrimination. The superintendent will provide the complainant with a written report of the ?ndings and proposed remedy, if any. SECTION 200: SCHOOL BOARD 2001 Eberharter-Maki Tappen, PA SD - 00382 Case Digment 14- .: on (2123. in Admin Use Only: Rpt. INCIDENT REPORT FORM Filed 09/24/16 Page 15 of 18 Form 1 of 4 Date: f0 l5 2? was which: r? 23 . ochJ 0021/1937 Cram a r. 3y. I . wit/Hf Li?r?! RV. iUC/w/~- gun" jib: (ii-{N {in} Date/Time of Occurrence: diam/VJ 5 30 pm Position: lo r- 2 {5 Description of event what, when, where, win?): ms 3? -C1FIC 4 {j leght? i . or' ?30 whim 41"" Mix. (it. Hi. 1" -l ?31m. ii"- {lawz re"- ?li 14'th Kidd r) ,0 A a m} {36" q, 1. . I . oLlAJd? Cod/Va 0 Conclusion: Hm'e {he allegariaus been substantiated as factual? Cl Yes El No Does the conduct violate C0. policy? El No Sexual Cl Other it ?it: . 7? c. a Dam" 431'" Disciplinary Action: Was disciplinary action taken? Cl Yes Cl No if so, explain: El Supervisor El Owner/0 f?ccr El other (describe) Victim Assistance/Support: Notes I Additional Comments: FORMS ATTACHED: Checklist Complaint Form 16 Incident Report 00663 El Respondent Witness Form DIETRICH SD - 00663 Qase Document 14-3 Filed 09/24/Page 16 of 18 v" -- --.-. I - (RS 4' Wt raw-rig(H?xt; imam . 3" :35cu-L} a I . 631/ ?zz/awn 4/ {xe?fcfo rw ru ?lmy/((?If . . I "a I 21/? :33ping/2:" r' (F .- L-lh- a w?l I I j? 'i?lL ?og) CJ (-7353?fin] F?\tr. A want. "6 {Jr gr I 17 "Before Practice" 00664 DIETRICH SD - 00664 Case Cic?fent 14-3 iled 09/2 /16 Page 17 of 18 . . (Am {Ci Admin Usc Only: Rpt. Form 1 of 4 INCIDENT REPORT FORM Date: A Person 3 oriin i Datefl?ime of Occurrence: GK [0 ?99 Position: 30 PM or :39) [5mm Desc "Flinn of event (?31410, what, when, liriicre, 1 BE SPECIFIC (a mai- ??70 fall, a; (Ar (J i 3 6-1.. (W div/UL rxe?e dry: 1 (J 1'1 {Lid fut - I: r' [3 Li ?1 (Matt; Ci? a- i a "7'5 ?3 k?t r330 id". tw} a 1? ?5 6'24? [4m filed L30 I ?re-5k. Ht EM 5? (73? Luke/L ,1 {ache} g?w' i\ - cl ?933 1-35.- Ct !?Qud - LA Klgg?a?xlOr'ES if) Conclusion: Have the allegations been as ?rearm? Cl Yes El No Does the conduct vialaie Co. policy? El No Sexual El Other Disciplinary Action: Was disciplinary action taken? No if so. explain: .. Victim AssistancelSupport: Cl Supervisor Cl Owner/Officer Ci other (describe) Notes I Additional Comments: FORMS ATTACHED: Checklist El Complaint Form El Respondent I Witness Form I ll . 8 a?er Practice 00665 DIETRICH SD-00665 LL) se Doc {nent14-3 Filed 09/24/16 Page 18 of 18 {ff-N bx?) HA .1: f? . t: '93- ?a - u? 55;} ?67.49{Add (boa. i ff" I le?g 0-41.12#13?3511.5 fr'gbl??i?} 6 {rd is: file" A. - - (51,555? zC WlerFcI. ml dim ((3)515; (A . - #6351fI?mk (fa-k. .5 gal. 19 "a?er Practice? 0066?7 0055 7 DIETRICH SD - 00666 Case Document 14-4 E. Lee Schlender, ISBN 117] SCHLENDER LAW OFFICES 2700 Holly Drive Mountain Home, ID 83647 587-1999 587-3535 R. Keith Roark, ISBN 2230 THE ROARK LAW FIRM 409 North Main Street Hailey, ID 83333 T: (208) 788-2427 F: (208) 788-3918 Attorneys for Plaintiff Filed 09/24/16 Page 1 of 7 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO ANTWON MCDANIEL, Plaintiff, V. DIETRICH SCHOOL DISTRICT NO. 314, STEPHANIE SHAW, BENJAMIN HARDCASTLE, BENJAMIN HOSKISSON, WAYNE DILL, STAR OLSEN, KRIS HUBERT, PERRY VAN TASSELL, BRET PETERSON, MICHAEL TORGERSON, RICK ASTLE, BRAD DOTSON AND JOHN AND JANE DOES 1-10, Defendants. Case No. 1:16-cv-00202 MEMORANDUM IN SUPPORT OF MOTION TO COMPEL DISCLOSURE WITHOUT REDACTIONS F.R.C.P. 26(a) and 37(b)(4) INTERIM PROTECTIVE ORDER MEMORANDUM IN SUPPORT OF MOTION TO COMPEL DISCLOSURE F.R.C.P. 26(a) and 37(b)(4) Case Document 14-4 Filed 09/24/16 Page 2 of 7 FACTS The facts regarding Plaintiff?s Motion to Compel Rule 26 Disclosure are not complicated. They can be summarized as presenting this question Is the Defendant entitled to unilaterally redact from all investigation reports, witness statements, crime scene illustrations and drawings key information? Defendants assert they are entitled to make redactions from the documents and have done so, rendering them useless. They state the redactions will only be removed when they identify the ?nal exhibits for trial. Defendants ?led their initial disclosures in three separate documents. The ?rst ?led on August 12, 2016, referred to disclosed documents as being bates numbered 1?630. A supplement Of the same date identi?ed additional documents with bates numbers Dietrich SD 631-662. These were identi?ed as ?documents that may be used to support defenses? and ?documents Defendants may offer as exhibits at the trial in this matter?. A second supplemental disclosure was ?led August 15, 2016, identifying insurance documents with bates numbers 1- 104?. A third supplemental disclosure was ?led September 15, 2016, which identi?ed additional documents with bates numbers ?Dietrich SD 631-662? and ?Dietrich SD 663-684.? Although identi?cation and location in the various disclosures is confusing, it is evident that the documents all relate to Plaintiff and are divided into categories; (1) Social Security documents (2) testing documents (ISAT) (3) ?District Assessments? (5) investigative reports and various witness statements and drawings. The critical evidentiary documents are bates numbered 00334-392, 375-381 and 663-669. They were scattered throughout the materials. For reference, attached to the Af?davit of E. Lee Schlender, is a copy of the known redacted documents. In summary; initially disclosed and redacted documents are within bates numbers 1-630 and 663-669. It is possible that some redacted documents are buried and overlooked. However the ones ?led MEMORANDUM IN SUPPORT OF MOTION TO COMPEL DISCLOSURE F.R.C.P. 26(a) and 37(b)(4) 2 Case Document 14-4 Filed 09/24/16 Page 3 of 7 provide the court with an overview of the redactions on ?incident reports?, investigative reports, and drawings. These documents report the investigation of the anal rape of Antwon McDaniel; they commence on or about the same dates; October 22-23, 2015. There are perhaps 3-5 hand- written reports by students or teachers. On Dietrich SD 00667 superintendent Mr. Hardcastle states that ?From October 23-November 3, 2015, Mrs. Shaw and Mr. Hardcastle conducted ?thirty (30) interviews, including students that were present in the locker room, play football, coaches and parents. We also reviewed camera footage outside of the locker room.? (See attachment to Schlender Af?davit ;00067.) If recorded or written, they are not disclosed or identi?ed. However we can ask for them by a discovery request. The third supplemental disclosure has attached handwritten notes obviously by students identi?ed as Dietrich SD 00334- 335. The superintendent?s report is identi?ed as Dietrich SD 00329?00333. Some are attached to the Af?davit of E. Lee Schlender and the remainder in Volume II af?davit exhibits. Mr. Hardcastle noti?ed defense counsel of the incident on October 28. 2015. By then most if not all of the interviews had been conducted. They were then available to the defense attorneys along with the remainder of the investigative reports including drawings of what appear to be the locker room area where the rape occurred, totally redacted as to the important information. Dietrich SD 385-393. Correspondence between counsel (attachments to Schlender Af?davit) con?rms the requests for documents without redaction and the refusal to remove them. In summary, it appears that documents seminal to this case including handwritten reports, investigative reports and drawings, are redacted to remove all essential information such as names of actors or participants, dates and speci?c incidents. They are thereby rendered useless. Of course, defense counsel has a complete set of these documents, bates numbered 1-630 and bates 664-0696 MEMORANDUM IN SUPPORT OF MOTION TO COMPEL DISCLOSURE - F.R.C.P. 26(3) and 37(b)(4) 3 Case Document 14-4 Filed 09/24/16 Page 4 of 7 without redaction. Defendants initially justi?ed the redactions as being mandated by the Family Educational Rights and Privacy Act (FERPA). (See Julian letter dated September 9, 2016.) It was pointed out to Mr. Julian that ERPA was not applicable to these documents; it only covers education records such as grades, attendance, and discipline and student activities. In a word; student records. ?Regulation limited to education records regulations apply only to ?education records,? de?ned as records ?directly related to a student? that are maintained by a school ?or by a party acting for? the school that personally identify a student, and that pertain to the student?s school career. /article2.pdf Indeed, even requests for protective court orders ?should be evaluated by balancing the need for the disclosure against the potential harm to the subject of the disclosure?); Verrill v. Battelle Energy Alliance, No. 4:12-cv-OO628, 2013 WL 5816632, at *2 (D. Idaho Oct. 28, 2013) (?nding that either the standard of ?relevancy? or the standard ?balancing the need for the disclosure against the potential harm to the subject of the disclosure? was met and that harm to third-parties is limited since the request is ?narrowly circumscribed to involve only their performance reviews and documents pertaining to any investigation surrounding their termination? and that the protective order would ensure the con?dentiality of the v. Battelle Energy Alliance, LLC, No. 2013 WL 5375833, at *2 (D. Idaho Sept. 24, 2013) (?nding that ?[r]resolution of a privacy objection requires a balancing of the need for the information sought against the privacy right asserted? and granting a limited order allowing plaintiff access to third-party mental health records of employees of defendant). ?In the Higher Education Act of 1992, FERPA was amended to create an exception for records collected by a law enforcement unit for "law enforcement purposes." Records falling under this provision are therefore not subject to the requirement provisions of ERPA. This applies for all levels of schools. Generally, law enforcement records are related to the investigation of a violation of a state or federal crime by a student. However, other state laws and regulations that cover the disclosure of criminal records may apply. A federal regulation de?ning this exception MEMORANDUM IN SUPPORT OF MOTION TO COMPEL DISCLOSURE - F.R.C.P. 26(3) and 37(b)(4) 4 Case Document 14-4 Filed 09/24/16 Page 5 of 7 is currently under review.? (Note: this exemption references the school having a ?law enforcement unit? although the reasoning would appear to be applicable to any law enforcement investigation) I.- On September 21, 2016. defense counsel reaf?rmed that unredacted documents would not be provided, stating that, ?Finally with regard to our 26 initial disclosures, we have fully complied with rule 26 in providing information the DEFENDANTS may use at trial. Rule 26 does not require a party to disgorge every document in his possession.? Af?davit of E. Lee Schlender, document The paragraph concludes with this sentence: ALL substantive information has been provided?. That is backwards. To be accurate it should state, All substantive information has been redacted.? On every incident report and drawings showing what happened and who was present; who made statements during the rape, the names and position of players and coaches in the locker room all are redacted. Defendants readily admit that documents with bate numbers 1-630 and 0664-0696 were disclosed as documents defendants ?may use at trial?. However, they are useless even to the defendants with the redactions. Is it their position that the redactions will only be removed when the final trial exhibits are shown to the jury At risk at appearing sarcastic, that position is simply nonsense. The defendants have admitted that they have all of the pertinent records and documents that are substantive to this case reports and interviews with students that were present in the locker room, investigative reports of the superintendent and other personnel, handwritten reports and drawings. They stated in the three Initial Disclosers that they were all potential trial exhibits. Without law that supports such redactions, they are not permitted. These documents are not simply historical internal MEMORANDUM IN SUPPORT OF MOTION TO COMPEL DISCLOSURE F.R.C.P. 26(3) and 37(b)(4) 5 Case Document 14-4 Filed 09/24/16 Page 6 of 7 records; they are the investigation ?les; the heart of the case. REQUEST FOR PROTECTIVE ORDER Defendants served discovery requests on August 31, 2016 with answers being due September 30, 2016. They insist that Plaintiff ?le answers by then, knowing we are in the dark as to what the investigation revealed. This is simply game playing. Without having possession of the records that state the facts of the case. Plaintiff is to guess what the redacted documents state; what are the facts. Plaintiff requests a protective order that Plaintiff shall not be required to comply with the defendants written discovery until not less than thirty days after furnishing counsel the documents without redaction. The defendants? position is frivolous. According, Plaintiffs request an award for attomey?s fees and costs. The court should consider further sanctions as well. DATED this 2 day of Septe er 2016. E. Attorney for Plaintiff MEMORANDUM IN SUPPORT OF MOTION TO COMPEL DISCLOSURE F.R.C.P. 26(a) and 37(b)(4) 6 Case Document 14-4 Filed 09/24/16 Page 7 of 7 OF SERVICE I certify that on September 2016 I caused a true and correct copy of this entire document to be served as indicated below: Mr. Brian Julian Anderson, Julian Hull LLP C. W. Moore Plaza 250 South Fifth Street, Suite 700 PO Box 7426 Boise, ID 83707-7426 Fax: (208) 344-5510 SERVED BY: . Lee Schlender, Attorney for Plaintiff MEMORANDUM IN SUPPORT OF MOTION TO COMPEL DISCLOSURE F.R.C.P. 26(a) and 37(b)(4) 7